Q: What is Child Support?
A: Child support is the money one parent pays to another to support their children financially after a separation or divorce. Child support is paid by the parent that spends the least amount of time with the child and it goes to the parent who takes care of the child most of the time. In cases where the child(ren) spends at least 40% of the time with each parent, the parent with the higher income may still have to pay some child support to the other parent. Child support helps cover costs associated with caring for the child such as food, clothing and shelter.
All dependent children have a legal right to be financially supported by their parents. This right is taken very seriously by the Court; judges may refuse to grant a divorce if they are not convinced that reasonable arrangements have been made for the continued financial support of the children.
Child support arrangements can be written in a separation agreement or a court order.
Q: Who Pays Child Support?
A: The law states that parents are responsible for financially supporting their dependent children. The parent who pays child support is called the “payor” parent.
Child support is the right of the child. The payor parent must support the children even if they:
- Are not married to the other parent.
- Did not have an ongoing relationship with the other parent.
- Remarry or start to live with someone else.
- Earn less money than the other parent.
More than one parent may have a legal duty to pay child support for the same child. A step-parent, for example, may assume the role of a parent and be required to pay child support in addition to the child’s biological parent.
Q: Who is the Dependent Child?
A: Child support is typically paid as long as a child remains dependent. “Dependent” usually means until the child turns 18 and sometimes longer.
A child is no longer dependent if they:
- Marry, or
- Are at least 16 years old and leave home voluntarily, often referred to as withdrawing from parental control. They must choose to leave home and cannot be forced to leave.
A child who is over the age of majority, which means 18 years or older, may still be dependent if they cannot support themselves, due to disability, illness, or going to school full-time.
In the case of disability or chronic illness, a child over the age of majority can remain dependent for their entire life.
Whereas, if the child is diligently pursuing their first undergraduate degree or diploma, they are generally in need of support until they finish school. This usually lasts until the child turns 22 or gets a degree or diploma. Sometimes support can be ordered to allow the child to get more than one degree.
Q: How is Child Support Calculated?
A: The Federal Child Support Guidelines calculate the base amount of child support by taking into consideration the payor parent’s gross annual income, and the number of children for whom support is being paid. The Child Support Guidelines vary from province to province.
Calculating a payor’s gross annual income can be complicated. In most cases, gross annual income can be calculated by looking at Line 150 of the payor parent’s income tax return or notice of assessment from the Canada Revenue Agency. However, in some cases, documents do not show the whole picture of what the payor parent makes or could be making. For example, if the payor:
- Is self-employed
- Has fluctuating income from year to year
- Works for cash
- Is not reporting his or her income
- Reports false information
- Only works part-time and is not actively looking for a job
In these situations, you can ask a judge to impute income, which is to decide that your partner earns more than they report to the Canada Revenue Agency or are capable of earning more. This is typically done by looking at the payor’s work history, past incomes, education, and job opportunities.
Payor parents are required to provide complete up-to-date income information to the other parent, including:
- Income tax returns and notice of assessment.
- Pay stubs or a letter from their employers.
- A statement of employment insurance, social assistance, pension, worker’s compensation, or disability payments.
- Their corporation’s financial statements if they are self-employed or if they control a corporation.
- Proof of income from a trust.
- Information about their corporation’s pre-tax income if they are a shareholder, officer or controller of a corporation.
The base amount referred to above is referred to as the “Table amount,” after the tables in the Child Support Guidelines that list the applicable support amounts for various income levels and number of children. These tables provide a starting point and are necessary when determining whether there are any special or extraordinary expenses that may occur. Once the Table amount of support is determined, it is necessary to determine whether the child(ren) have any special or extraordinary expenses.
The Federal Child Support Guidelines define special and extraordinary expense as those that are:
- Necessary because they are in the child’s best interest.
- Reasonable in relation to the means of the parents and the child.
- Reasonable in relation to the family spending patterns before the separation.
Special and extraordinary expenses may include:
- Child-care expenses.
- Medical and dental insurance premiums attributed to the child.
- Health related expenses including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, and prescription drugs, hearing aids, glasses, and contact lenses.
- Private school education cost.
- Expenses for post-secondary education.
- Extracurricular activities.
Special and extraordinary expenses are typically shared by the parents in proportion to their respective incomes.
Q: What Happens if I Cannot Afford to Pay Child Support
A: A court may order less than the Table amount of child support set out in the Federal
Child Support Guidelines if a parent suffers undue hardship by being required to pay this amount.
The factors that a court takes into account when determining whether a parent or child would suffer undue hardship include:
- unusually high levels of debt reasonably incurred to support the spouse and their children prior to the separation;
- unusually high expenses associated with access to a child;
- a legal duty under a judgment or order to support another individual;
- a legal duty to support a child, other than the child of the marriage, who is under the age of majority or who, owing to illness, disability, or other cause (including education), cannot support himself or herself; or
- a legal duty to support a person who cannot get the necessaries of life due to illness or disability.
This undue hardship provision was not meant to be used often and is rarely applied by family court judges. Courts have narrowly interpreted each element of the undue hardship test. Before making a claim of undue hardship, it is advisable to speak with a family law lawyer to discuss your likelihood of success.
Q: How do obtain Child Support?
A: There are numerous ways to get child support:
- Written Agreement: Enter into an agreement with the other parent. If both of you can agree on the terms, then you’re able to enter into a child support agreement or separation agreement on your own. Keep in mind that for it to be valid, the agreement must be dated, signed by both parents, and witnessed. You should also have the agreement reviewed by a family law lawyer.
- Court Order: If you’re unable to reach an agreement on your own, then you must apply to court under either the Divorce Act or the Family Law Act and have a judge make an order for child support in accordance with the Child Support Guidelines.
- Mediation: You and your spouse can choose to mediate the issue of child support. Mediation usually resolves things faster and cheaper than going to court. A mediator can assist you and your spouse in preparing a separation agreement.
If you have a court order, the court automatically sends a support deduction order to the Family Responsibility Office for endorsement. If you have a separation agreement, it is recommended that you have the agreement filed with the court so that the Family Responsibility Office can enforce it. Only agreements filed with the Court can be enforced by the FRO.
Q: Do I Still Have to Pay Child Support if I do not See my Children?
A: Child support is separate from the issue of access and the payor parent must support their children even if they do not see the children. Similarly, a payor parent cannot be denied access to their children because they have not paid child support. A court will not suspend a parent’s access because the parent does not pay support. Judge’s use the “best interest of the child test” when they are making decisions about custody and access. This test is set out in section 24 of the Children’s Law Reform Act.
Q: How is Child Support Enforced in Ontario? How do I deal with Arrears, or Delayed Payments?
A: In the province of Ontario, enforcement of child support is done through a provincial government office called the Family Responsibility Office (FRO). The FRO collects and distributes support payments. The parent who is to pay support is told to make all payments to the FRO. When the FRO receives a payment, they send a cheque – only when money is received from the payor- to the other parent or deposit the money directly into their bank account.
If you haven’t received payment in more than 30 days, you should contact the FRO. You will need to provide the FRO with as much up-to-date information about the payor as possible. This includes his or her full name, address, social insurance number, places of employment, income, and any property he or she owns. This information will be used by the FRO in collecting overdue amounts.
If the payor falls behind on support payments, the FRO can take enforcement action. Depending on the action taken, the payor may or may not be notified in advance. The FRO has the authority to take the following enforcement action:
- Garnishing the payor’s bank accounts
- Garnishing money the payor receives from the Government of Canada
- Reporting the payor to the credit bureau
- Suspending the payor’s driver’s license
- Suspending Canadian passports or federal licenses
- Placing a lien on personal property
And more. Learn more
If the payer has declared bankruptcy, the Director of the FRO will be a creditor with a claim against their estate. If the payor has not made a support payment in the last six months and the FRO has exhausted all efforts in trying to locate that person, the payor’s picture and personal information may be posted about that person on goodparentspay.com in order to locate the missing defaulting payor.
Q: How can Child Support be Changed?
Agreement between the parents
If both parents agree on new changes, they can make a new agreement. The agreement must be dated and signed by both parents and a witness. If the new agreement changes an old agreement that was filed with the court, a Notice of Calculation, or a Notice of Recalculation, then the new agreement should be filed with the court. Failure to notify the court will result in the FRO (Family Responsibility Office) being unable to enforce the new support amount.
Online Portal for Updating Child Support
Another way to change an existing child support payments is to use the online Child Support Services (CSS).
This online service streamlines the process for parents to get the support they are owed. Using this portal saves both parents’ time and money that would be eaten up by doing things the old way.
Here’s how it works:
- As soon as either parent registers or makes an update to the child support agreement through the portal, the other parent is notified.
- The other parent then has 25 days to respond.
- Both parents are required to allow the Canadian Revenue Agency (CRA) to share their tax information with the service in order to get the most accurate financial information from the parents,
- Once the service has the information, any necessary adjustments will be made and then enforced as a court order. The document produced by the service is referred to as a “Notice of Calculation or Recalculation” depending on whether or not it is your first time using the service.
While the Online Child Support Portal is an effective and efficient service for both parents, it has a few shortfalls:
- It does not address situations with shared parenting arrangements.
- If either parent refuses to use the online portal, the other parent will need to go through the traditional court process to obtain a new order.
- The service is only effective if both parents reside in Ontario.
- The service does not apply if the payor is self-employed and/or earns more than $150,000 per year. Only parents who are T4 earners can participate.
Motion to change
If the parents cannot agree or are unable to use online CSS, either parent may ask the court to change child support. The court will make changes only if there has been a material change in circumstances, such as:
- A change in the payor’s income.
- An adjustment to the needs of the child.
- A change in the child’s living arrangements.